Case 1:13-cv-00285-WYD-BNB Document 49 Filed 09/06/13 USDC Colorado Page 1 of 11

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 13-cv-00285-WYD-BNB
STEPHEN W. BRISCOE;
CONTINUUM HEALTH PARTNERSHIPS, INC.;
CONTINUUM HEALTH MANAGEMENT, LLC; and,
MOUNTAIN STATES HEALTH PROPERTIES, LLC,
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States
Department of Health and Human Services;
SETH D. HARRIS, in his official capacity as Acting Secretary of the United States
Department of Labor;
NEAL WOLIN, in his official capacity as Acting Secretary of the United States
Department of the Treasury;
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES;
UNITED STATES DEPARTMENT OF LABOR; and,
UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.

ORDER

THIS MATTER is before the Court on Stephen W. Briscoe, Continuum Health

Partnerships, Inc., Continuum Health Management, LLC, and Mountain States Health
Properties, LLCs (the Plaintiffs): (1) Motion For Preliminary Injunction [ECF No. 15];
(2) Motion For An Order Or, In The Alternative, Request To Set Motion For Preliminary
Injunction For Hearing [ECF No. 34]; (3) Motion For An Order Or, In The Alternative,
Request To Set Plaintiffs Preliminary Injunction Motion For Hearing and Request For
Forthwith Consideration [ECF No. 39]; (4) Emergency Application For A Temporary
Restraining Order Pending The Courts Ruling On Plaintiffs Motion For Preliminary
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Injunction and Request For Forthwith Consideration [ECF No. 40]; and, (5) Second
Emergency Application For A Temporary Restraining Order Pending The Courts Ruling
On Plaintiffs Motion For Preliminary Injunction Or, In The Alternative, A Request For A
Preliminary Injunction and Request For Forthwith Consideration [ECF No. 42].
For the reasons stated below, the Plaintiffs: (1) Motion For Preliminary
Injunction [ECF No. 15] is GRANTED; (2) Second Emergency Application For A
Temporary Restraining Order Pending The Courts Ruling On Plaintiffs Motion For
Preliminary Injunction Or, In The Alternative, A Request For A Preliminary Injunction
and Request For Forthwith Consideration [ECF No. 42] is GRANTED to the extent the
Plaintiffs seek a preliminary injunction; and, (3) Motion For An Order Or, In The
Alternative, Request To Set Motion For Preliminary Injunction For Hearing [ECF No.
34], Motion For An Order Or, In The Alternative, Request To Set Plaintiffs Preliminary
Injunction Motion For Hearing and Request For Forthwith Consideration [ECF No. 39],
and, Emergency Application For A Temporary Restraining Order Pending The Courts
Ruling On Plaintiffs Motion For Preliminary Injunction and Request For Forthwith
Consideration [ECF No. 40] are DENIED AS MOOT.
BACKGROUND
On February 15, 2013, Stephen W. Briscoe, Continuum Health Partnerships,
Inc., Continuum Health Management, LLC, and Mountain States Health Properties, LLC
(collectively the Plaintiffs), filed a Motion For Preliminary Injunction [ECF No. 15],
requesting that I enjoin Kathleen Sebelius, Seth D. Harris, Neil Wolin, the United States
Department of Health and Human Services, the United States Department of Labor, and
the United States Treasury (collectively the Defendants) from enforcing the Patient

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Protection and Affordable Health Care Act (AHCA), Pub. L. No. 111-148, 124 Stat.
119 (2010), because it allegedly violates the Plaintiffs religious rights by forcing them to
provide insurance plans providing free contraceptives, abortifacients, and sterilization
procedures to women. Specifically, the Plaintiffs argue that the AHCA violates: (1) the
Religious Freedom Restoration Act (RFRA), 42 U.S.C. 2000bb to bb-4; and, (2) the
Free Exercise, Establishment, and Free Speech Clauses of the First Amendment to the
Constitution of the United States. Four days later, the Plaintiffs filed a Motion For
Temporary Restraining Order [ECF No. 16], presenting identical arguments as set forth
in their Motion For Preliminary Injunction [ECF No. 15].
Briscoe is an Evangelical Christian and owns Continuum Health Partnerships,
Inc., Continuum Health Management, LLC, and Mountain States Health Properties,
LLC. Briscoes secular, for-profit companies manage and operate senior care assisted
living centers and skilled nursing facilities. Briscoe is the sole member and manager of
Continuum Health Management, LLC and Mountain States Health Properties, LLC.
Briscoe is also the lone shareholder of Continuum Health Partnerships, Inc.
On February 25, 2013, I held a hearing and heard arguments from both parties
regarding the Plaintiffs Motion For Temporary Restraining Order [ECF No. 16]. On
February 27, 2013, I issued an Order [ECF No. 25] denying the Plaintiffs Motion For
Temporary Restraining Order [ECF No. 16]. ECF No. 25, p. 17.
On July 1, 2013, the Plaintiffs filed a Motion For An Order Or, In The Alternative,
Request To Set Plaintiffs Preliminary Injunction Motion For Hearing and Request For
Forthwith Consideration [ECF No. 39]. In that motion, the Plaintiffs request that I enter
an order granting their Motion For Preliminary Injunction [ECF No. 15] in light of the

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United States Court of Appeals for the Tenth Circuits decision in Hobby Lobby Stores,
Inc. v. Sebelius, 2013 U.S. App. LEXIS 13316 (10th Cir. June 27, 2013). On July 2,
2013, the Plaintiffs filed an Emergency Application For A Temporary Restraining Order
Pending The Courts Ruling On Plaintiffs Motion For Preliminary Injunction and Request
For Forthwith Consideration [ECF No. 40]. In that motion, the Plaintiffs argue that in
light of the Tenth Circuits decision in Hobby Lobby, I should enter a temporary
restraining order in their favor until I rule on their Motion For Preliminary Injunction [ECF
No. 15].
On July 3, 2013, I issued an Order deferring rulings on all pending motions until
Judge Heaton of the United States District Court for the Western District of Oklahoma
ruled on the preliminary injunction at issue in Hobby Lobby Stores, Inc. v. Sebelius, 12cv-01000-HE (W.D. Okla.) upon remand by the Tenth Circuit. On July 19, 2013, Judge
Heaton issued an Order [ECF No. 76 in case no. 12-cv-01000-HE] granting Hobby
Lobbys motion for preliminary injunction.
On July 22, 2013, the Plaintiffs filed a Second Emergency Application For A
Temporary Restraining Order Pending The Courts Ruling On Plaintiffs Motion For
Preliminary Injunction Or, In The Alternative, A Request For A Preliminary Injunction
and Request For Forthwith Consideration [ECF No. 42]. The Plaintiffs argue that in light
of the Hobby Lobby decision and Judge Heatons issuance of a preliminary injunction in
Hobby Lobby Stores, Inc. v. Sebelius, 12-cv-01000-HE (W.D. Okla.), I should either
enter a temporary restraining order in their favor until I rule on the Motion For
Preliminary Injunction [ECF No. 15], or grant their Motion For Preliminary Injunction
[ECF No. 15].

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On September 5, 2013, I held a hearing to determine the precise scope of the

Plaintiffs objection to the AHCAs preventative care mandate. The Plaintiffs stated that
their objection to the AHCAs preventative care mandate is identical to that of the Hobby
Lobby plaintiffs objection. Based on the arguments presented at the hearing and the
parties multiple briefs, I stated on the record that I would grant the Plaintiffs Motion For
Preliminary Injunction [ECF No. 15]. This opinion outlines my reasons for doing so.
ANALYSIS
A. The Patient Protection and Affordable Health Care Act (AHCA), Pub. L. No.
111-148, 124 Stat. 119 (2010)
On March 23, 2010, President Barack Obama signed into law the AHCA. The
AHCA contains numerous health care reforms. Among one of the reforms is a mandate
that group health plans must provide no-cost coverage for preventative care and
screening for women. Pursuant to 42 U.S.C. 300gg-13(a)(4):
(a) In general. A group health plan and a health insurance
issuer offering group or individual health insurance coverage
shall, at a minimum provide coverage for and shall not
impose any cost sharing requirements for-*

(4) with respect to women, such additional preventive care

and screenings not described in paragraph (1) as provided
for in comprehensive guidelines supported by the Health
Resources and Services Administration for purposes of this
paragraph.
While the AHCA mandates no-cost coverage for preventative care and screening for
women, it does not define or establish what constitutes preventative care and screening
for women. The AHCA delegated this responsibility to the Health Resources and
Services Administration (HRSA). See 42 U.S.C. 300gg-12(a)(4). On August 1,

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2011, the HRSA adopted recommendations from the Institute of Medicine that
established the scope of preventative care and screening for women. See HRSA,
Womens Preventative Services: Required Health Plan Coverage Guidelines,
http://www.hrsa.gov/womensguidelines/ (last visited 9/6/13). Pursuant to the HRSAs
guidelines, preventative care and screening for women includes [a]ll Food and Drug
Administration approved contraceptive methods, sterilization procedures, and patient
education and counseling for all women with reproductive capacity. Id. If a group
insurance plan fails to provide such care for women, the insurer shall pay a penalty tax
of one hundred dollars per day for each day in the noncompliance period with respect
to each individual to whom such failure relates. 26 U.S.C. 4980D(b)(1). If the
Plaintiffs fail to offer employee health insurance altogether, they face significant
penalties as well. See 26 U.S.C. 4980H.
There are four exemptions from the AHCAs preventative care mandate.1 The
Plaintiffs do not qualify for any of the exemptions. Thus, they are required by law to
provide no-cost preventative care and screening for women as defined by the HRSA.
B. The Hobby Lobby Decision
On June 27, 2013, the Tenth Circuit issued its decision in Hobby Lobby regarding
a similar challenge to the AHCA as is presented in the case at bar. The case was
before the Tenth Circuit on appeal of Judge Heatons denial of the plaintiffs motion for a
preliminary injunction. Judge Heaton denied the plaintiffs motion for preliminary
injunction finding, inter alia, that: (1) Hobby Lobby was not a person under the RFRA
and therefore could not bring such a claim; (2) the individual plaintiffs had not

For a detailed explanation of the four exemptions, see Hobby Lobby, 2013 U.S. App. LEXIS 13316 at
11-14.

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established under the RFRA that the AHCAs mandate substantially burdened their
religious exercise; and, (3) in light of those findings, the plaintiffs had not demonstrated
a likelihood of success on their RFRA claim. Hobby Lobby, Inc. v. Sebelius, 870 F.
Supp. 2d 1278, revd and remanded en banc, 2013 U.S. App. LEXIS 13316. On
appeal, the Tenth Circuit, sitting en banc, held that: (1) Hobby Lobby and Mardel ( a
Christian bookstore) are persons under the RFRA and are entitled to bring RFRA
claims; (2) the plaintiffs demonstrated that the AHCAs mandate substantially burdened
their religious exercise; (3) the plaintiffs established a likelihood of success on their
RFRA claims; and, (4) the plaintiffs established that they would suffer irreparable harm if
an injunction was not issued. Hobby Lobby, 2013 U.S. App. LEXIS 133116 at 2.
Because the en banc Tenth Circuit did not reach a majority on whether the plaintiffs
satisfied the latter two requirements for issuance of a preliminary injunction i.e., whether
the harm alleged by the movant outweighs any harm to the non-moving party and
whether an injunction is in the public interest, it remanded the case back to Judge
Heaton with instructions to address the remaining two preliminary injunction factors and
then assess whether to grant or deny the plaintiffs motion. Id. at 81.
C. Legal Standard For Issuance of a Preliminary Injunction
In order to obtain a preliminary injunction, the movant must establish: (1) a
substantial likelihood of success on the merits; (2) irreparable harm to the movant if the
injunction is denied; (3) the threatened injury outweighs the harm that the preliminary
injunction may cause the opposing party; and (4) the injunction, if issued, will not
adversely affect the public interest. GMC v. Urban Gorilla, LLC, 500 F.3d 1222, 1226
(10th Cir. 2007) (citing Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1255

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(10th Cir. 2003)). Pursuant to the Tenth Circuits Hobby Lobby decision, I need only
analyze the latter two factors. See 2013 U.S. App. LEXIS 133116 at 81 (Finding in
Hobby Lobbys favor regarding a substantial likelihood of success on the merits and
irreparable harm, and stating we . . . remand with instructions that the district court
address the remaining two preliminary injunction factors and then assess whether to
grant or deny the plaintiffs motion).
1. Whether The Threatened Injury Outweighs The Harm That The
Preliminary Injunction May Cause The Opposing Party
At the September 5, 2013, hearing, the Plaintiffs stated on record that they face
up to five million dollars in fines, per year, if they choose to offer health insurance that
does not comply with the AHCAs preventative care mandate. The Plaintiffs further
stated that if they choose not to offer health insurance at all, they face fines in the range
of three to four hundred thousand dollars per year. The Plaintiffs state that they employ
approximately 200 persons. If the Government is enjoined from enforcing the AHCAs
preventative care mandate on those 200 persons, the harm caused by such injunction is
outweighed by the punitive fines the Plaintiffs face. Further, the Government has
exempted a large quantity of persons from the AHCAs preventative care mandate.
While I will not speculate on the exact number of persons exempted, I note that the
Tenth Circuit stated that the government has already exempted health plans covering
millions of others. Hobby Lobby, 2013 U.S. App. LEXIS 133116 at 79. Exempting
another 200 persons from the AHCAs preventative care mandate will not deal a
catastrophic blow to the Government such that the harm an injunction would cause the
Government would be greater than the harm suffered by the Plaintiffs.

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The Food and Drug Administration (FDA) approved twenty contraceptive

methods that fall under the AHCAs preventative care mandate. Hobby Lobby, 2013
U.S. App. LEXIS 133116 at 9. The Plaintiffs only object to four of the twenty FDA
approved methods: an identical objection to that of the Hobby Lobby plaintiffs. Id. at 73.
The Plaintiffs do not object to providing the other sixteen FDA approved methods. As
such, the governments interest is largely realized while coexisting with [the Plaintiffs]
religious objections. Id. at 79.
Therefore, I find that that the threatened injury to the Plaintiffs outweighs the
harm an injunction may cause the Government.
2. Whether An Injunction Is In The Public Interest
To be clear, the Plaintiffs rights under the RFRA are statutory. However, the
RFRA implicates religious rights recognized by the Constitution of the United States
e.g., the Free Exercise Clause. [I]t is always in the public interest to prevent the
violation of a partys constitutional rights. Hobby Lobby, 2013 U.S. App. LEXIS 133116
at 80 (citation omitted). Thus, an injunction is in the public interest.
CONCLUSION
After careful consideration of the matters before this Court, I find that issuance of
preliminary injunction is warranted. Accordingly, it is
ORDERED that the Plaintiffs Motion For Preliminary Injunction [ECF No. 15] is
GRANTED, and the Defendants, their agents, officers, and employees are ENJOINED
and RESTRAINED from enforcing the AHCAs preventative care mandate on the
Plaintiffs only with respect to the four objectionable FDA approved methods: (1)
Ella; (2) Plan B, Plan B One-Step, and Next Choice (Levonorgestrel); (3) the Copper

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IUD; and, (4) the IUD with Progestin. The Defendants, their agents, officers, and
employees are ENJOINED and RESTRAINED from enforcing the AHCAs
preventative care mandate as to the four objectionable FDA approved methods
and any penalties related thereto until further order by this Court. It is
FURTHER ORDERED that the Plaintiffs Second Emergency Application For A
Temporary Restraining Order Pending The Courts Ruling On Plaintiffs Motion For
Preliminary Injunction Or, In The Alternative, A Request For A Preliminary Injunction
and Request For Forthwith Consideration [ECF No. 42] is GRANTED to the extent the
Plaintiffs seek a preliminary injunction, and such injunction is limited in scope as stated
in this order. It is
FURTHER ORDERED that the following motions filed by the Plaintiffs are
DENIED AS MOOT: (1) Motion For An Order Or, In The Alternative, Request To Set
Motion For Preliminary Injunction For Hearing [ECF No. 34]; (2) Motion For An Order
Or, In The Alternative, Request To Set Plaintiffs Preliminary Injunction Motion For
Hearing and Request For Forthwith Consideration [ECF No. 39]; and, (3) Emergency
Application For A Temporary Restraining Order Pending The Courts Ruling On
Plaintiffs Motion For Preliminary Injunction and Request For Forthwith Consideration
[ECF No. 40]. It is
FURTHER ORDERED that the Government shall immediately, upon notice,
inform the Court whether it seeks to appeal either the Tenth Circuits Hobby Lobby
decision and/or Judge Heatons order issuing a preliminary injunction in Hobby Lobby
Stores, Inc. v. Sebelius, 12-cv-01000-HE (W.D. Okla.).

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Dated: September 6, 2013.

BY THE COURT:
/s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior U. S. District Judge

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